“Creating Two Different Nations”: The Deepening Divide Between Red And Blue America
Halbig v. Burwell, the case in which opponents of the Affordable Care Act won a dramatic if temporary victory yesterday, has profound implications for millions of Americans’ health care. But it’s also a demonstration of a trend that is determining more and more of what our politics and our country are going to look like in future years.
We talk a lot about America being divided ideologically, with liberals and conservatives increasingly distrustful and dismissive of each other. But we’re also in the process of creating two different nations, where stepping across a state border means entering a society with profoundly different laws and policy goals. And Republicans may have just stumbled on a way to use the federal government to increase that division.
Both parties are driving this broad movement. In many Republican-controlled states, it’s now all but impossible for a woman to get an abortion; people are encouraged by the state government to bring their guns to church and into bars; and taxes are whittled away while social services are slashed. Democrats too have gotten more aggressive in places they control, on issues like raising the minimum wage, same-sex marriage, and legalizing marijuana.
But the challenges to the ACA have shown the Republicans a new path, a kind of federalized federalism, where they can not only make Red America a more conservative place through state laws, but exempt Red America from federal laws they don’t like.
This wasn’t part of a carefully laid-out plan. Initially Republicans were just using any and every means they could find to undermine the ACA, with the goal of destroying it completely. Though they failed to do that, they won their first significant (if partial) victory when the Supreme Court ruled that states could opt out of the law’s expansion of Medicaid, which meant that we have two different countries when it comes to health coverage for poor people. If you’re poor and you live in a blue state or one of the few red states that has accepted the expansion, you can get free health insurance. If not, you’re out of luck. See, for instance, this vivid New York Times article about the city of Texarkana, which lies half in Texas and half in Arkansas; whether you get health insurance is determined by which side of town you live in.
In the Halbig case, conservatives located a drafting error and pursued it for no reason other than that it looked like a promising vehicle for Republican-appointed judges to strike a blow at the law. Creating two different countries when it comes to the ACA wasn’t really the goal, but it could be the outcome.
Let’s imagine the Supreme Court upheld the D.C. Circuit panel’s decision. In the states that have already established state exchanges, nothing would change. With a few exceptions (like Kentucky and Idaho) these are blue states. Everywhere else, people would immediately lose the tax credits they received to buy insurance, reverting to the pre-ACA status quo. That means more people without insurance, and a system that is generally more cruel and unforgiving. The states that are Democratic-controlled or divided but haven’t yet set up an exchange, like Pennsylvania, New Jersey, and Maine, would probably move to do so in order to restore those subsidies to their citizens. Once it all shook out, you’d have a situation in which, for all intents and purposes, the most consequential social legislation passed through Congress in nearly half a century was operative in only half the country.
If that were to happen (and maybe even if it doesn’t), Republicans are likely to see a new means to accomplish their policy goals on any number of issues. If you can’t repeal a federal law you don’t like, maybe you can have it apply only to Blue America. Get a few creative lawyers together, and you can come up with a rationale for a lawsuit to allow states to opt out of almost any law; few can deny now that no matter how thin the legal reed you hang such a suit on, there will always be conservative judges who will embrace your logic. We could see a proliferation of opt-out amendments in Congress, as each significant piece of legislation is accompanied by an effort to give Republican states the ability to exempt themselves.
And don’t be surprised if perpetually vulnerable red state Democrats end up supporting those amendments from time to time, so they can give their party the votes it needs to pass bills, but also tell the folks back home that they stood up for states’ rights.
In 1932, Justice Louis Brandeis wrote in a dissenting opinion:
It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
But the assumption has always been that when states act as laboratories of democracy, they’re exploring different ways to arrive at common goals. Increasingly, liberals and conservatives can agree only on the most abstract goals, like prosperity and freedom, but on almost none of the specifics. With the ACA as an example, Washington could become the new laboratory of division, where federal legislation and federal lawsuits become the means to drive Red America and Blue America further apart.
By: Paul Waldman, Contributing Editor, The American Prospect; Published in The Plum Line, The Washington Post, July 23, 2014
“Judicial Neutrality Is Nothing But A Farce”: The Latest ObamaCare Decision Makes It Official, We Need More Liberal Judges
After the passage of ObamaCare in 2010, dozens of conservative wonks, activists, and lawyers began poring over the text of the law, trying to find some legal foothold to overthrow as much of it as possible. First they argued that the law’s individual mandate was unconstitutional in NFIB vs. Sebelius, which was rejected by the Supreme Court in 2012. However, the decision weakened the law by making its expansion of Medicaid optional, which led most conservative states to reject it and deny coverage to millions of poorer Americans.
Then, in Burwell vs. Hobby Lobby, conservatives attacked the scope of the law’s mandated coverage, arguing that the inclusion of certain kinds of contraception violated the Religious Freedom Restoration Act. That one they basically won, though the damage was minimal.
You’ll know these efforts by what conservatives usually call them: “judicial activism.” It paid off again today, with a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit dealing a sharp blow to ObamaCare’s subsidy system. Adrianna McIntyre explains:
The suit alleges that subsidies should only be available in states that set up their own insurance exchanges, based on the text of the Affordable Care Act. The government can still appeal, but if it ultimately loses the case at the Supreme Court, it’s possible that federal subsidies will no longer be available to help make insurance affordable in over 30 states.
Due to what appears to many outside observers to have been poorly crafted legislative language, Congress arguably wrote a sentence that provides subsidies exclusively to state-based exchanges and not to federally facilitated ones, even while subjectively intending to provide subsidies in both cases. [Vox]
Now, Halbig v. Burwell is only a preliminary ruling. The government probably will request an “en banc” ruling before the entire appellate court, which leans to the left — thanks to Majority Leader Harry Reid (D-Nev.) pushing through filibuster reform that filled its long-empty seats with President Obama’s appointees. What’s more, another ruling hours later by the Fourth Circuit Court of Appeals in Richmond, Virginia, upheld the ObamaCare subsidies, deferring to the government’s interpretation of the language to mean that it is authorized to dole out those subsidies. It’s possible this will all end up before the Supreme Court, increasingly America’s only policy-making body of consequence.
God only knows what the high court will decide. Thirty-six states did not create their own ObamaCare exchanges, which means that upholding Halbig would swipe the subsidies from something like 87 percent of people who bought insurance on the federal exchange — about 4.7 million of them. Premiums would shoot up by an average of 76 percent, basically crippling the law. An individual mandate is unjustifiable without subsidies for people who can’t afford insurance. Chief Justice John Roberts might balk at destroying the keystone achievement of the Obama presidency on what amounts to a trivial technicality — or he might not.
What we do know is that the concept of judicial “neutrality” is nothing but a farce. The conservative goal is to pick at any possible legal thread and mobilize the judicial system to achieve their aim of destroying the law and throwing millions of people off their health insurance, even if the underlying legal rationale is wildly tendentious or weaselly or undemocratic. There will be Republican-appointed judges who will buy such arguments wholesale, as evidenced by the conservative majority in Halbig, which didn’t even bother to hide their scorn for the government’s case.
Indeed, half the reason so many states don’t have exchanges in the first place is that a Cato Institute analyst named Michael Cannon has been crossing the nation telling them not to, with the deliberate object of maximizing the damage to ObamaCare if the courts endorsed Halbig-style reasoning.
Liberals need to jettison the impossible idea of neutral, objective judges, and just get avowed lefties appointed wherever possible. As conservatives have demonstrated, that’s simply how the system works.
By: Ryan Cooper, The Week, July 22, 2014
“It’s Not A Game, It’s People’s Lives”: What Today’s Obamacare Ruling Reveals About The GOP
Today in a two-to-one decision a three-judge panel of the Court of Appeals for the D.C. Circuit delivered Republicans perhaps their biggest victory yet in their ongoing legal battle to destroy the Affordable Care Act. This case is far from over — it will probably be appealed to the full appeals court (where today’s decision is likely to be reversed) and then to the Supreme Court. But it demonstrates just how willing Republicans are to lay waste to Americans’ lives if it means they can strike a blow at Barack Obama and his health law.
In some of their challenges to the ACA, there was a legitimate philosophical or practical point Republicans were making. You or I might think the idea that a mandate to carry insurance constitutes the death of liberty is ridiculous, but at least it was a substantive objection. Not so in this case, Halbig v. Burwell. Here, Republicans literally found a legislative drafting error in the ACA that they hoped could be used to deal a near-fatal blow to the law, and two Republican-appointed appeals court judges agreed with them.
In a section of the ACA concerning the subsidies given to low- and middle-income people to buy insurance on the exchanges, the legislation refers to subsidies provided through “an Exchange established by the State.” Since over half the states didn’t create their own exchanges and ended up with the federal exchange, the plaintiffs argue that no one in those states should be eligible to receive subsidies. If they’re successful, it would mean that if you live in Kentucky, which has a state exchange, you can get federal subsidies to buy insurance, but if you live next door in Tennessee, which uses the federal exchange, you can’t.
Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed. As far as the Republicans are concerned, it’s like spotting that a batter’s toe missed second base as he was trotting around for his home run, and therefore claiming that they won the game after all.
But it’s not a game, it’s people’s lives. If they succeed at the Supreme Court, people will die. That’s not hyperbole. Millions of Americans will lose their health coverage — 6.5 million by one estimate — and many of them won’t be able to afford to go to the doctor, and many of them will have ailments that go untreated. People will die.
If you want to read a comprehensive analysis of how legally and logically absurd this decision was, I’d recommend this one by Ian Millhiser. Cases like this often turn on Congress’ intent in writing legislation, and in this case there is no question about that intent — at no point in the debate or drafting or voting did anyone say that if a state chose to use the federal exchange then the people in that state wouldn’t get subsidies. But if you read the majority’s decision, you can see the two Republican judges positively luxuriating in the drafting error for page after page, exploring every possible way in which it could trap the government into denying subsidies to people.
Most ridiculously, they assert that there’s just no way to know whether Congress actually intended that people in states using the federal exchange should get subsidies, so their intent can only be inferred by the phrase “established by the State.”
As I said, this is a temporary victory for the ACA’s opponents — the whole D.C. Circuit court is likely to reverse this decision, though what will happen at the Supreme Court is less than clear. But when you see Republicans raising glasses of champagne to congratulate themselves on how clever they are, remember what it is they’re celebrating. It isn’t that conservatism won some meaningful philosophical victory, or that they’ve managed to make the country a better place. All that’s happening is that they may have succeeded in taking health insurance away from millions of Americans.
By: Paul Waldman, Contributing Editor, The American Prsospect; Published at The Plum Line, The Washington Post, July 22, 2014
“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
“Where Are Putin’s American Admirers Now?”: Vlad’s Doting, Adoring Conservative Fans Are Awfully Quiet
It is hard to overstate the damage that the downing of Malaysia Airlines flight 17 over eastern Ukraine has done to Russian President Vladimir Putin. In addition to isolating him further internationally and threatening greater harm to the Russian economy, the killing of 298 people aboard a civilian jetliner, which U.S. officials are increasingly sure was caused by a missile launched by Russian-backed separatists in Ukraine, has gravely undermined the aura of competence and tactical brilliance that Putin has cultivated over the years and which helped Russia project outsized influence even in an era of post-Soviet decline and diminishment. As Josh Marshall of Talking Points Memo notes, letting powerful Russian-made anti-aircraft weaponry into the hands of pro-Russia fighters who cannot tell the difference between a large passenger airliner and a military plane is “a f’-up on Putin’s part of almost mind-boggling proportions. Yes, a tragedy. Yes, perhaps an atrocity. But almost more threatening, a screw up.”
But we should not just leave it at that. Rather, we should recall all those in recent months who showered awe and praise on Putin for his extreme capability, which was often contrasted unfavorably with the hapless President Obama.
First, there was all the praise for the Russian military itself following the invasion of Crimea. The New York Times, among many others, gave dazzling reviews of the “sleek new vanguard of the Russian military,” soldiers who were “lean and fit,” dressed in uniforms that were “crisp and neat …their new helmets…bedecked with tinted safety goggles,” and outfitted with “compact encrypted radio units distributed at the small-unit level, a telltale sign of a sweeping modernization effort undertaken five years ago by Putin that has revitalized Russia’s conventional military abilities, frightening some of its former vassal states in Eastern Europe and forcing NATO to re-evaluate its longstanding view of post-Soviet Russia as a nuclear power with limited ground muscle.”
This seemed a tad premature and overstated, given that the Russian military was facing virtually no resistance from the outnumbered Ukrainian forces in Crimea—it’s easy for soldiers to look sleek and professional when there’s no actual contact with the enemy. But Putin himself basked in the praise, echoing it himself in a ceremony celebrating the invasion: “The recent events in Crimea were a serious test, demonstrating the quality of the new capabilities of our military personnel, as well as the high moral spirit of the staff,” he said.
Once pro-Russian separatists started their uprising in eastern Ukraine, there was a new round of praise for the deviously brilliant strategy Putin was deploying there, sending in personnel and equipment to assist the separatists but making sure that the personnel were unmarked, giving Russia superficially plausible deniability about their activities. Commentators hailed this approach—maskirovka, or masked warfare—as the wave of the future in warfare. As one admirer wrote in a column for the Huffington Post:
President Putin’s game plan in Ukraine becomes clearer day by day despite Russia’s excellent, even brilliant, use of its traditional maskirovka. … It stands for deliberately misleading the enemy with regard to own intentions causing the opponent to make wrong decisions thereby playing into your own hand. In today’s world this is mainly done through cunning use of networks to shape perceptions blurring the picture and opening up for world opinion to see your view as the correct one legitimizing policy steps you intend to take.
This “cunning use of networks” is less “excellent, even brilliant” when said networks, as now appears likely, kill nearly 300 innocent civilians, most of them citizens of the nation that is one of your largest trading partners.
Meanwhile, there was all along the more general praise for the prowess and capability of Putin himself from American conservatives. Charles Krauthammer penned a Washington Post op-ed headlined: “Obama vs. Putin, the Mismatch.” Rudy Giuliani’s adulation for Putin surely caused a blush in the Kremlin: “[H]e makes a decision and he executes it, quickly. And then everybody reacts. That’s what you call a leader.” Rush Limbaugh went on a riff about Putin’s superiority to Obama:
In fact, Putin—ready for this?—postponed the Oscar telecast last night. He didn’t want his own population distracted. He wanted his own population knowing full well what he was doing, and he wanted them celebrating him. They weren’t distracted. We were. …
Well, did you hear that the White House put out a photo of Obama talking on the phone with Vlad, and Obama’s sleeves were rolled up? That was done to make it look like Obama was really working hard—I mean, really taking it seriously. His sleeves were rolled up while on the phone with Putin! Putin probably had his shirt off practicing Tai-Chi while he was talking to Obama.
Was Putin also practicing shirtless Tai-Chi when he learned that, in all likelihood, men fighting in Russia’s name and with its backing had downed a passenger airliner and provoked a major international incident? Who knows. Enough, for now, that this awful tragedy provokes a jot of self-reflection on the part of those who were so willing to trumpet Putin’s brilliance these past few months. If Putin’s maskirovka did manage to “shape perceptions blurring the picture,” these admirers were the most susceptible.
By: Alec MacGillis, The New Republic, July 18, 2014
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